Citizens Council of Delaware County v. Brinegar

Decision Date01 August 1984
Docket Number83-1697,Nos. 83-1669,AFL-CIO,s. 83-1669
Citation741 F.2d 584
PartiesCITIZENS COUNCIL OF DELAWARE COUNTY; Chester-Ridley-Crum Watersheds Association: Whiskey Run Rebellion; League of Women Voters of Swarthmore; Rhoda Gribbel; Roy Smith; Donna and Leonard Mammucari; John and Barbara Crowther; Alan and Margot Hunt; and Marion Lebeis, Appellees, v. Claude S. BRINEGAR, Secretary of Transportation of the United States and Jacob Kassab, Secretary of Transportation of the Commonwealth of Pennsylvania and Harry A. McNichol, Chairman, and Nicholas F. Catania and William A. Springler, Commissioners of Delaware County, and Gus D. Houtman, President, and James W. Davis, Theodore D. Hadley, Jr. and James J. McKeehen, Branton H. Henderson and Charles E. Weber, Members of the Park and Recreation Board of Delaware County and John J. Shields, President, and Anthony Daliessio, John D. Donald, Peter J. O'Keefe, Norman R. Lincoln, John Haller, Charles S. Bottino, W. Gordo Atherholt and Samuel B. Morrelli, Members of the Ridley Township Board of Commissioners, Appellants. MARPLE TOWNSHIP and Radnor Township and Swarthmore College Ashwood Manor Civic Association, Appellees/Cross-Appellants, v. LEWIS, Drew, Secretary of Transportation of the United States and Larson, Thomas D., Secretary of Transportation of the Commonwealth of Pennsylvania and The Chester Group; The Honorable Edgar, Robert W.; The County of Delaware; The City of Chester; The Borough of Upland; The Borough of Trainer; The Borough of Eddystone; The Borough of Marcus Hook; The Delaware County Chamber of Commerce; The Delaware CountyCouncil; The Committee for the Blue Route; Hart, David K.; Jordan, Richard C., Jr. and Clayton, Howard J.; The Greater Philadelphia Chamber of Commerce Penjerdel Council and the Borough of Prospect Park, Appellant/Cross-Appellee. MARPLE TOWNSHIP and Radnor Township and Swarthmore College Ashwood Manor Civic Association, Appellants, v. LEWIS, Drew, Secretary of Transportation of the United States and Larson, Thomas D., Secretary of Transportation of the Commonwealt
CourtU.S. Court of Appeals — Third Circuit

F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., Edward S.G. Dennis, Jr., U.S. Atty., Susan Dein Bricklin, Asst. U.S. Atty., Philadelphia, Pa., Robert L. Klarquist, Maria A. Iizuka (argued), Attys., Dept. of Justice, Land & Natural Resource Div., Appellate Section, Edward V.A. Kussy, Deborah Dull, Federal Highway Admin., Washington, D.C., for appellant/cross-appellee.

Edward F. Mannino (argued) Marguerite S. Walsh, James J. Greenfield, Dillworth, Paxson, Kalish & Kauffman, Philadelphia, Pa., for appellees/cross-appellants.

Before GARTH and SLOVITER, Circuit Judges, and NEAHER, District Judge. *

OPINION OF THE COURT

GARTH, Circuit Judge.

The primary question which we must answer in this appeal is whether a township or other governmental entity is a "party" within the meaning of that term as it is found in the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412 (1982). Marple Township and Radnor Township (the Townships) claim to be such parties, 1 and therefore they seek an affirmance in major part of the district court judgment awarding attorneys' fees of $86,643.75 plus $2,511.67 in costs in favor of the Townships and two other entities. The Townships challenge, however, the hourly rate fixed by the district court in its calculation of the attorneys' fees. Thus the Townships have filed a cross-appeal.

The United States Department of Transportation (the Department), on the other hand, claims that Congress did not intend EAJA to operate in favor of such governmental entities as the Townships and it asks us to reverse the district court judgment awarding attorney fees. We hold that townships, such as the parties here, are not "parties" eligible for a fee award within the meaning of Sec. 2412(d)(2)(B) of EAJA.

Because the underlying factual dispute leading to the district court order awarding fees is significant for an understanding of the positions taken by the parties here, we briefly recount the factual circumstances giving rise to this appeal.

I.

Appellees/cross-appellants the Townships, along with Swarthmore College (the College) and Ashwood Manor Civic Association (the Civic Association), instituted an action against appellant/cross-appellee the Department, and the Pennsylvania Department of Transportation (PennDOT), that challenged the Department's conduct in implementing plans for a highway popularly known as the "Blue Route." The suit sought an injunction barring construction of the Blue Route on the grounds that the Department had violated federal law, including the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321, et seq., and the Department of Transportation Act, 49 U.S.C. Secs. 1651-1660 (1982) (repealed). (In a related action, Citizens Council of Delaware County challenged the Department's conduct with respect to a portion of the highway.) The plaintiffs alleged in major part that the Department had failed to prepare a proper supplemental environmental impact statement (EIS) pursuant to 23 C.F.R. Sec. 771.14(i) (1980) (repealed) and a "4(f) statement" pursuant to section 4(f) of the Department of Transportation Act, 49 U.S.C. Sec. 1653(f) (1982) (repealed and substantially recodified at 49 U.S.C.A. Sec. 303 (West Supp.1983).) 2

The facts as reported in the district court opinion on cross-motions for summary judgment (App. 282-325) may be summarized as follows. The Blue Route had been in the planning stages for many years prior to the litigation. An initial formal plan for building a route to connect Interstate-95 and the Pennsylvania Turnpike in southeast Pennsylvania was proposed in 1961, and the highway was partially built beginning in 1967. After NEPA became effective in 1970, the Department prepared an EIS and a 4(f) statement for some segments. Litigation about the portion of the highway at issue in the case here resulted in a consent decree that required the Department to issue a new EIS/4(f) statement. A draft statement was issued, and public hearings were held. A preliminary final statement was submitted to several federal agencies in 1978.

Some agencies criticized the statement, and the Department of the Interior questioned the lack of adequate consideration of alternatives as mandated by NEPA and Sec. 4(f) of the Department of Transportation Act. The EPA also criticized the failure to consider alternatives. The Federal Highway Administrator (FHWA) refused to request the Secretary of Transportation to concur in the Final Statement; instead the FHWA suggested modifying the plan to reduce the scale of the highway. The Department and FHWA then formed a task force, which issued a report recommending various modifications in the highway plan. The report was incorporated into the Final EIS as an "addendum"; the body of the EIS was not changed. The Addendum stated, inter alia, that "Expressway encroachments in stream valleys have been significantly reduced" and that "As a result of the Task Force study, there will be major revisions to the previously completed final design discussed in the base Final EIS." (See App. 291).

The Final EIS/Section 4(f) Statement containing the Addendum was then submitted to the Secretary of the Department for the Secretary's required Section 4(f) determination that there were no alternatives to the plan, and that the plan minimized harm to public lands, see 49 U.S.C. Sec. 1653(f) (1976) (repealed), supra note 2, and infra p. 22-23. The FHWA Deputy Administrator recommended that the Secretary do this as a "concurrence" in the recommendations contained in the statement; the Secretary then did so.

This final statement was approved by FHWA; notice of the action was published in the Federal Register in November 1980. Following further objections to the plan by the Department of Interior, FHWA agreed to various additional conditions to ensure compliance with environmental commitments contained in the EIS.

It was six months later that the Townships instituted the action above referred to. The suit by Citizens Council, which had been filed in 1974 and put into suspense, was then reactivated and consolidated with the Townships' suit.

On cross-motions for summary judgment, the district court held that the Department had violated NEPA and the Department of Transportation Act by issuing an inadequate supplemental EIS and 4(f) statement after the plan was revised. The court, inter alia, granted the plaintiffs' request for injunctive relief, enjoining the Department from proceeding further with work on the Blue Route until a supplemental EIS and 4(f) statement was prepared; the court also enjoined PennDOT from using any federal funds to work on the Blue Route until the proper EIS/4(f) statement issued. Marple Township v. Lewis, Secretary of Transportation, No. 81-4627 (E.D.Pa. August 30, 1982); Citizens Council of Delaware County v. Secretary of Transportation, No. 74-925 (E.D.Pa. August 30, 1982). This decision was not appealed.

The Townships, the College, and the Civic Association then jointly petitioned the district court for an award of attorneys' fees under EAJA.

The district court on January 28, 1983, held that the plaintiffs were eligible parties under EAJA. The court held that the Townships qualified as eligible "parties" under 28 U.S.C. Sec. 2412(d)(2)(B)(iii): "a sole owner of an unincorporated business, or a...

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